6 N.C. 30 | N.C. | 1811
The law relating to the competency of witnesses (32) is too well settled at this day to leave any doubt upon the first point submitted in this case. The general rule is laid down in Bent v. Baker, 3 Term, 27, "that the witness is competent, if the verdict cannot be given in evidence either for or against him in any other suit," etc. The finding of the jury upon the issue submitted to them in the present case cannot be used by the witness as evidence in any other suit. There may be exceptions to the general rule, but this is not one. The deposition of David Black was therefore properly received.
As to the second point, it is to be observed that Mrs. Hornibleau has taken an assignment of a chose in action, a judgment, a thing in its nature not assignable at law. She, therefore, cannot stand in a better situation than her assignor. Upon an examination of the authorities upon this subject it will be found that the ground taken by Mrs. Hornibleau is tenable by those persons only who, having the "legal title" in them, plead that they are purchasers for a valuable consideration and without notice. By this plea they show that they have as much equity on their side as their opponents, and that being the case, a court of equity will not interfere and divest them of their legal title. All that Mrs. Hornibleau shows is that she purchased Black's right to a chose in action. She, then, has nolegal, but only an equitable right. But Jordan shows that Black obtained the judgment against him unconscientiously, and this Court will say, in such case, that he shall not have the benefit of it, nor shall Mrs. Hornibleau, as she can stand in a situation no better than her assignor. Let the injunction therefore be perpetuated.
Cited: Rice v. Hearn,
(33)